ESSED UP BAD LESSONS ON THE …€œI MESSED UP BAD”: LESSONS ON THE CONFRONTATION CLAUSE FROM THE...

“I MESSED UP BAD”:

LESSONS ON THE CONFRONTATION CLAUSE

FROM THE ANNIE DOOKHAN SCANDAL

Sean K. Driscoll*

In September 2012, scandal broke at the Massachusetts state crime laboratory:

Annie Dookhan, a chemist at the lab, was arrested for falsifying thousands of drug

test results. Amazingly, her misconduct had gone undiscovered for nine years,

despite the fact that she testified—and was cross-examined—in at least 150 trials.

Tens of thousands of prosecutions were jeopardized, and scores of appeals filed. But

beyond the immediate fallout, Dookhan’s misconduct raises a bigger question: is

cross-examination of laboratory analysts—a right conferred by the Supreme

Court’s 2009 decision in Melendez-Diaz v. Massachusetts—effective at discovering

misconduct in forensic testing, or merely a hollow right for defendants that imposes

substantial costs on prosecutors? This Article examines the Dookhan scandal,

arguing that it showcases the shortcomings of Melendez-Diaz, and proposes a new

rule favoring the retesting of forensic evidence over needless cross-examination.

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................... 708

I. CONFRONTATION CLAUSE JURISPRUDENCE ...................................................... 710 A. Black Letter Law ........................................................................................ 710 B. Underlying Rationales ................................................................................ 712

1. The Majority ........................................................................................... 712 2. The Dissent ............................................................................................. 713

II. LABORATORY SCANDALS: THE ANNIE DOOKHAN DEBACLE ........................... 714 A. Dookhan’s Misconduct .............................................................................. 715 B. Lessons from the Dookhan Scandal ........................................................... 719

1. Cross-Examination Is Ineffective at Discovering Flawed Forensic Testing

............................................................................................................. 719 2. The Dookhan Scandal Will Create a Windfall for Many Defendants .... 720 3. The Dissenting Justices’ Predictions About Increased Litigation Following

Melendez-Diaz Were Correct .............................................................. 722

* J.D., Harvard Law School. 2013; B.A., University of Virginia, 2004; Police

Officer, New York City Police Department (NYPD), 2006–2010.

708 ARIZONA LAW REVIEW [VOL. 56:3

III. PROPOSALS FOR REFORM ................................................................................ 723 A. Laboratory Safeguards ............................................................................... 724 B. Retesting of Evidence ................................................................................. 725

IV. RETHINKING CONFRONTATION CLAUSE JURISPRUDENCE ............................... 727 A. 18th Century Solutions to 21st Century Problems ..................................... 728 B. Where Does Forensic Testing Fit? ............................................................. 730

1. Are Forensic Testing Reports “Testimonial”? ........................................ 730 2. Who is the “Witness” Subject to Cross-Examination for a Forensic

Testing Report? ................................................................................... 734 C. Interpreting the Sixth Amendment: Lessons from Gideon ......................... 735 D. A New Rule ................................................................................................ 736

CONCLUSION ........................................................................................................ 739

INTRODUCTION

Rogue. Wayward. Criminal. Those are just some of the words that the

media used to describe Annie Dookhan, a former chemist at the Massachusetts state

crime laboratory who has admitted to falsifying thousands of drug tests over a three-

year period.1 Her own word choice in describing the crimes she committed—though

woefully understated—was perhaps even more fitting: “I messed up bad.”2

Annie Dookhan did indeed mess up bad. Charged with perjury and

obstruction of justice, the allegations against Dookhan ranged from not properly

calibrating equipment, to intentionally contaminating evidence in order to ensure a

positive drug test.3 During her nine-year tenure at the Massachusetts State Drug Lab,

Dookhan handled over 60,000 drug samples from at least 34,000 criminal cases.4

Although Dookhan has pleaded guilty and is now serving a three- to five-year prison

sentence,5 her actions have potentially jeopardized convictions in all of these cases.

Many have wondered how such a massive fraud could have gone

undetected for so long. The Massachusetts Department of Public Health laboratory

1. Brian Ballou & Andrea Estes, Chemist Admitted Wrongdoing in Lab Scandal,

BOSTON GLOBE, Sept. 26, 2012, http://www.bostonglobe.com/2012/09/26/chemist-annie-

dookhan-lab-scandal-investigators-messed-bad/uORxid5JamieMK1 wumq2uO/story.html.

2. Massachusetts: Chemist Admits Faking Drug Results, N.Y. TIMES, Sept. 27,

2012, http://www.nytimes.com/2012/09/27/us/massachusetts-chemist-admits-faking-drug-

results.html.

3. John R. Ellement et. al., State Chemist Accused of Mixing Drug Samples,

BOSTON GLOBE, Sept. 13, 2012, http://www.bostonglobe.com/metro/2012/09/12/state-

chemist-mixed-drugs-from-unrelated-cases-increased-weight-evidence-prosecutor-alleges/

KiyNOzh7iSzbRUoRKXr0gL/story.html.

4. Andrea Estes et al., Drug Lab Chemist Accused of Lying, BOSTON GLOBE,

Sept. 26, 2012, http://www.bostonglobe.com/metro/2012/09/25/chemist-center-state-drug-

lab-scandal-did-not-have-master-degree-she-claimed-umass-officials-

say/dGyMOLgULvS4ag94f8pjLN/story.html.

5. Milton J. Valencia & John R. Ellement, Annie Dookhan Pleads Guilty in Drug

Lab Scandal, BOSTON GLOBE, Nov. 22, 2013, http://www.bostonglobe.com

/metro/2013/11/22/annie-dookhan-former-state-chemist-who-mishandled-drug-evidence-

agrees-plead-guilty/7UU3hfZUof4DFJGoNUfXGO/story.html.

2014] I MESSED UP BAD 709

in Jamaica Plain where Dookhan worked—shuttered in the wake of this scandal—

used industry standard safeguards, yet supervisors did not catch Dookhan for years.6

Amazingly, Dookhan testified approximately 150 times in the three years before her

arrest, and yet no one discovered her fraud.7 Despite repeated cross-examination,

defense attorneys failed to uncover Dookhan’s fraudulent tests.

Prosecutors and defense attorneys, however, are not the only people who

ought to be worried—the Supreme Court should take notice of the Dookhan scandal

as well. The very fact that Dookhan was testifying was a result of the Court’s 2009

ruling in Melendez-Diaz v. Massachusetts. Building on its landmark Confrontation

Clause ruling in Crawford v. Washington, the Court in Melendez-Diaz held that the

Sixth Amendment required laboratory analysts who tested evidence to testify at trial;

sworn affidavits would no longer suffice.8 Doomsday predictions for prosecutors

were immediate, led by Justice Kennedy’s dissenting opinion: “[T]he Court

threatens to disrupt forensic investigations across the country and to put prosecutions

nationwide at risk of dismissal . . . . Guilty defendants will go free, on the most

technical grounds, as a direct result of today’s decision, adding nothing to the truth-

finding process.”9

To the majority in Melendez-Diaz, however, the holding served an

important truth-seeking function and was a vindication of defendants’ Sixth

Amendment rights. While acknowledging that there might be “other ways—and in

some cases better ways—to challenge or verify the results of a forensic test,” Justice

Scalia’s majority opinion concluded that “the Constitution guarantees one way:

confrontation.” 10 Specifically, the Melendez-Diaz decision put its faith in the

“crucible of cross-examination” as the way the Sixth Amendment “ensure[s]

accurate forensic analysis.”11

Unfortunately, the “crucible of cross-examination” failed to stop Annie

Dookhan. This scandal highlights the critical shortcoming of the Melendez-Diaz line

of cases, one that the Court itself implicitly acknowledged: “[The Confrontation

Clause] commands, not that evidence be reliable, but that reliability be assessed in

a particular manner.”12 Because Melendez-Diaz and its progeny are founded on an

unnecessarily narrow view of the Sixth Amendment’s Confrontation Clause, this

line of cases has—quite openly—embraced “a procedural rather than a substantive”

method for ensuring reliability.13 Although this rationale may work well for the

6. Kay Lazar, How a Chemist Circumvented Her Lab’s Safeguards, BOSTON

GLOBE, Sept. 30, 2012, http://www.bostonglobe.com/lifestyle/health-wellness/2012/09

/29/how-chemist-drug-lab-scandal-circumvented-safeguards/uR3jTdvw4sWe3gLj0m2GnO/

story.html.

7. Estes et al., supra note 4.

8. Crawford v. Washington, 541 U.S. 36 (2004); Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 329 (2009).

9. Melendez-Diaz, 557 U.S. at 340, 342 (Kennedy, J., dissenting).

10. Id. at 318.

11. Id. at 317–18.

12. Id. at 317 (citing Crawford, 541 U.S. at 61–62).

13. Id.


testimony of eyewitnesses, where “the jury is the lie detector,” 14 the Dookhan

scandal shows that cross-examination fails to root out many errors in scientific

evidence, whether unintentional or malicious. Overall, the Dookhan scandal

questions the Court’s vision of the Confrontation Clause, and should prompt us all

to reassess how best to achieve “the Clause’s ultimate goal . . . to ensure reliability

of evidence.”15

This Article proposes several solutions for rethinking the application of the

Confrontation Clause to forensic testing, 16 ultimately concluding that given the

“aura of infallibility” 17 with which many jurors perceive scientific evidence,

effective confrontation demands access to independent retesting of evidence. To

arrive at that conclusion, this Article proceeds in four parts. Part I examines the

Melendez-Diaz line of cases, analyzing the current state of the law as of Williams v.

Illinois. Then, Part II discusses the Dookhan scandal, drawing lessons from her case

that highlight the shortcomings in the Court’s Confrontation Clause jurisprudence.

Part III turns to proposed legislative solutions, examining several possible reforms.

Finally, Part IV offers a proposed holding for future forensic testing confrontation

cases before the Supreme Court. This proposed rule is designed to incentivize

defendants to challenge truly erroneous lab results, while preventing wasteful

retesting and unnecessary testimony by technicians.

I. CONFRONTATION CLAUSE JURISPRUDENCE

A. Black Letter Law

Confrontation Clause jurisprudence on forensic evidence derives from the

Court’s 2004 decision in Crawford v. Washington. This landmark case upended the

settled understanding18 of the Confrontation Clause, and held that “testimonial”

14. United States v. Scheffer, 523 U.S. 303, 313 (1998) (quoting United States v.

Barnard, 490 F.2d 907, 912 (9th Cir. 1973)).

15. Melendez-Diaz, 557 U.S. at 317 (citing Crawford, 541 U.S. at 61–62).

16. Throughout this Article, I will refer to “forensic testing” and “forensic

evidence” interchangeably. In certain contexts, these terms can have different meanings:

markings on a shell casing from a firearm’s ejector pin, for example, are truly “forensic

evidence”; while narcotics are an example of traditional evidence that is subjected to “forensic

testing.” However, in professional usage, the National Academy of Sciences and the National

Institute of Justice also use these terms interchangeably. See NAT’L ACAD. OF SCIS.,

STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 1–3 (2009),

available at https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf; NAT’L INST. OF JUSTICE,

STATUS AND NEEDS OF FORENSIC SCIENCE SERVICE PROVIDERS: A REPORT TO CONGRESS

(March 2006), available at https://www.ncjrs.gov/pdffiles1/nij/213420.pdf. Moreover, the

Supreme Court’s rule from Melendez-Diaz applies equally to any evidence subjected to

testing by an analyst. Thus I have grouped theses terms together in this Article and intend the

widest possible meaning of “forensic testing” for the purposes of this Article.

17. Scheffer, 523 U.S. at 314 (discussing polygraph evidence).

18. See Ohio v. Roberts, 448 U.S. 56, 66 (1980) (“In sum, when a hearsay

declarant is not present for cross-examination at trial, the Confrontation Clause normally

requires a showing that he is unavailable. Even then, his statement is admissible only if it

bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where

the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must

be excluded, at least absent a showing of particularized guarantees of trustworthiness.”).


hearsay is inadmissible absent “a prior opportunity for cross-examination.” 19

However, Crawford did not offer an all-inclusive definition of “testimonial,” it only

stated, “whatever else the term covers, it applies at a minimum to prior testimony at

a preliminary hearing, before a grand jury, or at a former trial; and to police

interrogations.” 20 The Court also clarified that business records were not

testimonial.21 Afterwards, the decision left many people—especially prosecutors

and defense attorneys—guessing exactly how far this definition reached.

Five years later, Melendez-Diaz v. Massachusetts extended the Crawford

rule to affidavits reporting the results of laboratory testing, holding that there was

“little doubt” that such reports were also “testimonial” and thus required the

government to bring the laboratory technician into court for cross-examination.22

While the majority considered the decision a “rather straightforward application of

[the] holding in Crawford,”23 the dissent found it “remarkable that the Court so

confidently disregard[ed] a century of jurisprudence.” 24 Justice Kennedy’s

dissenting opinion predicted a parade of horribles, with guilty defendants set free,

and prosecutorial confusion about who exactly would be required to testify about

forensic tests: all analysts, all custodians, or just those with access to final results?25

In Bullcoming v. New Mexico, the Court answered the question of who was

required to testify. The State offered the testimony of a lab analyst, but not the

specific analyst who actually tested the defendant’s blood alcohol content (after an

arrest for driving while intoxicated). 26 The Court rejected this arrangement as

inconsistent with Crawford and Melendez-Diaz, holding that such “surrogate

testimony . . . does not meet the constitutional requirement. The accused’s right is

to be confronted with the analyst who made the certification.”27

The Court’s 2012 decision in Williams is its most recent take on the

Confrontation Clause and forensic testing. While the case technically addressed

whether a forensic test report could be referenced during expert testimony (by a

witness who did not perform the test),28 it was largely an extended battle over the

fate of Melendez-Diaz. Specifically, the three opinions in Williams (a plurality

decision) sparred over the usefulness of cross-examination in assuring accurate

forensic test results. In a dramatic opening to her dissenting opinion, Justice Kagan

recounted “a mortifying error” that a laboratory technician realized she had made

19. Crawford, 541 U.S. at 46 (holding that the declarant must also be

“unavailable”).

20. Id.

21. Id. at 56. The majority opinion concluded that statements in furtherance of a

conspiracy were also nontestimonial, and thus admissible under Crawford. The sole

“exception” that the Court, in dicta, seems to endorse, is for dying declarations, which were

accepted at common law. Id. at 56 n.6.

22. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310–11 (2009).

23. Id. at 312.

24. Id. at 330 (Kennedy, J., dissenting).

25. Id. at 333–34 (Kennedy, J., dissenting).

26. See Bullcoming v. New Mexico, 131 S. Ct. 2705, 2707–09 (2011).

27. Id. at 2710 (emphasis added).

28. See Williams v. Illinois, 132 S. Ct. 2221, 2228 (2012) (evaluating under

Illinois Rule of Evidence 703, which is identical to Federal Rule of Evidence 703).


“after undergoing cross examination.” 29 The technician’s error was indeed

mortifying: by mixing up labels on lab samples, she incorrectly testified that the

defendant was the source of semen in a rape case. However, as Justice Breyer’s

concurring opinion pointed out, the laboratory technician’s error was not discovered

in the “crucible of cross examination,” but rather by the technician herself

“reviewing the laboratory’s notes” after she left the witness stand. 30 Though

certainly disturbing, this example was also the only such case the dissent discussed

where cross-examination (possibly) ferreted out a laboratory error. Because it was

only a plurality decision,31 Williams does nothing to change the doctrine, but it does

reveal the deep rift in opinions on the Court over the application of the Confrontation

Clause to forensic test results. Even more importantly, it brought questions about

reliability, the underlying purpose of the Confrontation Clause, back to the surface.

B. Underlying Rationales

1. The Majority

The problems with relying on cross-examination to uncover erroneous

forensic testing (discussed below in Part II) are an inevitable result of the rationale

underlying the Melendez-Diaz line of cases. Justice Scalia’s majority opinion in

Melendez-Diaz draws heavily from the originalist historical reasoning he advanced

in Crawford, namely that the Confrontation Clause was designed to avoid the evils

of civil-law ex parte examinations as evidence at trial, like those that unjustly

condemned Sir Walter Raleigh to death in 1603. 32 While admitting that the

Constitution’s text alone does not lead to a clear answer about the meaning of the

Confrontation Clause, 33 the Crawford majority drew this conclusion from the

Clause’s history:

To be sure, the Clause’s ultimate goal is to ensure reliability of

evidence, but it is a procedural rather than a substantive guarantee. It

commands, not that evidence be reliable, but that reliability be

assessed in a particular manner: by testing in the crucible of cross-

examination. The Clause thus reflects a judgment, not only about the

29. Id. at 2264 (Kagan, J., dissenting) (citing State v. Kocak, Tr. in No.

SCD110465 (Super. Ct. San Diego Cty., Cal., Nov. 17, 1995), pp. 3–4 (“I’m a little hysterical

right now, but I think . . . the two names should be switched.”), available at

http://www.nlada.org/forensics/for_lib/Documents/1037341561.0/JohnIvanKocak.pdf).

30. Williams, 132 S. Ct. at 2246 (Breyer, J., concurring).

31. Id. at 2255 (Thomas, J., concurring in judgment) (“I reach this conclusion,

however, solely because Cellmark’s statements lacked the requisite ‘formality and solemnity’

to be considered ‘testimonial’ for purposes of the Confrontation Clause.”).

32. See Crawford v. Washington, 541 U.S. 36, 43–45 (2004). In 1603, Sir Walter

Raleigh was accused of treason. At his trial, the only evidence of his guilt came from his

(alleged) co-conspirator, who did not testify in person, but rather through a letter accusing

Raleigh. Despite Raleigh’s demand to “call my accuser before my face,” the judges refused,

and Raleigh was convicted and sentenced to death. One of those judges later recanted: “[T]he

justice of England has never been so degraded and injured as by the condemnation of Sir

Walter Raleigh.” Id. at 44.

33. Id. at 42.


desirability of reliable evidence (a point on which there could be little

dissent), but about how reliability can best be determined.34

In Melendez-Diaz, the Court invoked the same rationale. While conceding

“there are other ways—and in some cases better ways—to challenge or verify the

results of a forensic test,”35 the Court placed its faith in the ability of “the crucible

of cross examination” to elicit the truth:

While it is true, as the dissent notes, that an honest analyst will not

alter his testimony when forced to confront the defendant, the same

cannot be said of the fraudulent analyst. . . . Like the eyewitness who

has fabricated his account to the police, the analyst who provides false

results may, under oath in open court, reconsider his false

testimony.36

Unfortunately, as Part II will show, the Annie Dookhan scandal undermines this

view of the Confrontation Clause.

2. The Dissent

Justice Kennedy’s dissenting opinion in Melendez-Diaz is blunt,

lambasting the majority’s holding as “wooden,” “formalistic and pointless,”

“divorced from any . . . common sense,” and “a distortion of the criminal justice

system.”37 The dissent followed a pragmatic approach to the problem of forensic

evidence under the Confrontation Clause, and seemed particularly worried about

guilty defendants receiving windfalls from the majority’s new rule. Noting that

Melendez-Diaz never “dispute[d] the authenticity of the [drug] samples” in his trial,

and merely made “a pro forma objection to admitting the results without in-court

testimony,”38 Justice Kennedy concludes: “Where, as here, the defendant does not

even dispute the accuracy of the analyst’s work, confrontation adds nothing.”39 And

if there were a problem with the testing itself, the solution to “errors in scientific

tests,” the dissent observed, is not cross-examination but “conducting a new test.”40

Despite its strong objections to the majority’s holding, the dissent still

accepts one of the (in my view, flawed) pillars of the majority’s reasoning: the

protection afforded by the Confrontation Clause extends only to cross-examination.

Justice Kennedy implicitly concedes this point, stating that the “Confrontation

Clause is not designed, and does not serve, to detect errors in scientific tests.”41

Under this logic, because cross-examination (what the Confrontation Clause

affords) will not detect errors (the very purpose of cross-examination) the

Confrontation Clause has no place in the world of forensic testing—and thus Justice

34. Id. at 61 (emphasis added).

35. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318 (2009).

36. Id. at 318–19 (emphasis added) (internal citations omitted).

37. Id. at 337–38 (Kennedy, J., dissenting).

38. Id. at 338.

39. Id. at 340.

40. Id. at 337.

41. Id.


Kennedy concluded that the lab analysts may as well be left alone instead of being

dragged in to testify.42

The Melendez-Diaz dissent did not need to abandon the fight for the

Confrontation Clause at this juncture. While Justice Kennedy was correct to point

out the futility of cross-examination in nearly all forensic testing cases, I will argue

in Part IV that the Confrontation Clause can be sensibly applied to forensic science

in a manner that Justice Kennedy himself suggested: not by requiring analyst

testimony, but by guaranteeing defendants a right to “conduct[] a new test” of

evidence against them.43 The need for a new Confrontation Clause jurisprudence is

apparent when considering the lessons of the Annie Dookhan scandal, analyzed

below in Part II.

II. LABORATORY SCANDALS: THE ANNIE DOOKHAN DEBACLE

While the sheer scale of Annie Dookhan’s fraud may be novel, scandals at

crime laboratories unfortunately are nothing new. Before the Dookhan scandal, the

most famous case of misconduct in forensic science involved the Federal Bureau of

Investigation’s renowned crime lab in the mid-1990s.44 Whistleblower Frederic

Whitehurst revealed a laboratory filled with prosecution-biased scientists, and

outdated equipment and methods.45 In the years following, more scandals hit the

news: faulty fingerprint analysis convicted a Boston man of murdering a police

officer in 1997;46 Montana, West Virginia, and Oklahoma all overhauled crime labs

after erroneous convictions in the early 2000s; and 280 boxes of previously untested

forensic evidence from at least 8,000 cases were “found” in a Houston police lab in

2004, ranging from items of clothing to a human fetus.47 The capstone of this period

was a report about forensic science practices published by the National Academy of

Sciences in 2009, documenting “serious problems” across a variety of testing

disciplines.48

Such unsettling news for forensic science has continued recently. In Nassau

County, outside of New York City, the crime laboratory was shuttered in February

2011 following widespread procedural violations in drug testing.49 These problems

42. Id. at 338 (“The facts of this case illustrate the formalistic and pointless nature

of the Court's reading of the Clause.”).

43. Id. at 337.

44. Karen Zraick, Drunken Driving Conviction Voided for Crime Lab Errors,

N.Y. TIMES, Mar. 7, 2011, http://www.nytimes.com/2011/03/08/nyregion/08nassau.html.

45. See generally JOHN F. KELLY & PHILLIP K. WEARNE, TAINTING EVIDENCE:

INSIDE THE SCANDALS AT THE FBI CRIME LAB (1998).

46. Id.

47. Maurice Possley, Steve Mills & Flynn McRoberts, Scandal Touches Even

Elite Labs, CHI. TRIB., Oct. 21, 2004, http://www.chicagotribune.com/news/watchdog/chi-

041021forensics,0,1083342,full.story.

48. NAT’L ACAD. OF SCIS., supra note 16, at xx. In addition to reporting quality

control problems with valid scientific procedures, such as DNA testing, this report also

questioned whether some forensic testing, like bloodstain pattern analysis, should be curtailed

in its use. Id. at 177–79. This second question is an important one, but is beyond the scope of

this Article.

49. Zraick, supra note 44.


occurred despite the fact that New York State requires accreditation of all police

labs by the American Society of Criminal Lab Directors Laboratory Accreditation

Board (“ASCLD/LAB”).50 In 2012, the police lab in St. Paul, Minnesota came under

scrutiny for poor testing practices and training,51 while in Illinois, the Cook County

Medical Examiner resigned after newspapers reported that the morgue was

(literally) double-stacking bodies to cope with overcrowding.52 Most recently, New

York City’s vaunted crime laboratory—praised for its efforts to identify the victims

of the 9/11 attacks through DNA testing—has admitted to misplacing DNA evidence

in over 800 rape cases.53

Unsettling though they are, none of these other scandals matches the sheer

number of cases that Annie Dookhan falsified, or the rogue fashion in which she

intentionally altered evidence.

A. Dookhan’s Misconduct

“I screwed up big time. I messed up. I messed up bad.” That is what chemist

Annie Dookhan told police after being arrested for perjury and obstruction of

justice.54 It was an understatement to say the least. Investigators initially focused on

1,141 potentially-jeopardized drug convictions, 55 but defense attorneys and the

American Civil Liberties Union (“ACLU”) have now challenged more than 40,000

cases on which Dookhan worked during her nine-year tenure at the Massachusetts

state laboratory.56

In 2003, shortly after graduating from the University of Massachusetts with

a B.S. in Chemistry, Dookhan accepted a job as a “Chemist I” at the Massachusetts

50. Marie Cusick, Scandals Call into Question Crime Labs’ Oversight, NPR (Nov.

20, 2012), http://www.npr.org/2012/11/20/165579898/forensic-crime-lab-scandals-may-be-

due-to-oversight.

51. Hern Estrada, St. Paul Crime Lab Puts 350 Cases at Risk So Far,

MINNEAPOLIS STAR TRIB., Aug. 1, 2012,

http://www.startribune.com/local/south/164635746.html.

52. Hal Dardick, Preckwinkle Shakes up Cook County Medical Examiner’s Office,

CHI. TRIB., June 20, 2012, http://articles.chicagotribune.com/2012-06-20/news/ct-met-cook-

county-medical-examiner-0620-2-20120620_1_board-president-toni-preckwinkle-

preckwinkle-aides-office.

53. Joseph Goldstein, New York Examines Over 800 Rape Cases for Possible

Mishandling of Evidence, N.Y. TIMES, Jan. 10, 2013, http://www.nytimes.com/2013/01/11/

nyregion/new-york-reviewing-over-800-rape-cases-for-possible-mishandling-of-dna-evide

nce.html. To date, however, it appears that all of the mistakes were false negatives, leaving

many rapes unsolved, but not resulting in any wrongful convictions; defense advocates are

challenging this portrayal. See Joseph Goldstein & Nina Bernstein, Ex-Technician Denies

Faulty DNA Work, N.Y. TIMES, Jan. 11, 2013, http://www.nytimes.com/2013/01/12/ny

region/former-lab-technician-denies-faulty-dna-work-in-rape-cases.html.

54. Katharine Q. Seelye & Jess Bidgood, Prison for a State Chemist Who Faked

Drug Evidence, N.Y. TIMES, Nov. 22, 2013, http://www.nytimes.com/2013/11/23/us/prison-

for-state-chemist-who-faked-drug-evidence.html.

55. Ellement et al., supra note 3.

56. Milton J. Valencia, ACLU Demands Dismissal of All Dookhan-Related Cases,

BOSTON GLOBE, Jan. 9, 2014, http://www.bostonglobe.com/metro/2014/01/09/aclu/

FRgBDWIWMKy5og03mBQBRN/story.html.


Department of Public Health laboratory in Jamaica Plain.57 In that role (also known

as a “Primary Chemist”), Dookhan performed preliminary analysis on suspected

drug samples arriving at the laboratory. After this basic analysis, which involved a

“spot test” and a “microcrystalline test,” a small amount of the sample was placed

into test vials for further analysis. A “Chemist II” (or “Confirmatory Chemist”)

performs these subsequent tests, which involve mass spectronomy. 58 After working

in the laboratory for two years, Dookhan received a promotion to Chemist II, and

was serving in that role during the time period that she falsified test results.59

Prosecutors believe that the bulk of Dookhan’s misconduct involved

“drylabbing” of initial drug screening tests. In drylabbing, a chemist simply guesses

what drug a substance is, solely based on its appearance, instead of using laboratory

tests. 60 Although prosecutors are not entirely certain about her motives for

drylabbing, Dookhan claims that she only cut corners in order to “get more work

done” and “boost her performance record.”61 In these cases, however, Dookhan’s

initial tests were all sent to a second chemist for confirmation.62

More troubling than the drylabbing allegations, however, are claims that

Dookhan forged her colleagues’ initials on forms verifying her work, and even

intentionally contaminated samples with drugs from other cases to ensure that they

would test positive for narcotics, or to increase the weight of drugs, which could

lead to longer sentences. 63 (Prosecutors now believe that Dookhan never

contaminated the main evidence samples, but only the test vials, thus leaving the

original sample capable of being accurately retested.64) Dookhan’s motivation for


58. Brief for Defendant, Commonwealth of Massachusetts v. Charlton, 962

N.E.2d 203 (2012) (No. 10-P-1042), 2010 WL 3415978 at *13 (citing trial transcript at 168–

75).


60. Ellement et al., supra note 3.

61. Lazar, supra note 6.

62. Id. The initial screening is merely to help the second analyst determine against

what baseline drug to evaluate the sample. Id.

63. Id. Some samples that police believe to be narcotics can be “cutting” agents

that dealers use to dilute the potency of drugs sold. These cutting agents are not themselves

narcotics, but legal powdery substances like mild anesthetics or laxatives. See generally

World Drug Report 2009 Series: Afghanistan Identifies Cutting Agents for Heroin, UNODC

(June 22, 2009) http://www.unodc.org/unodc/en/frontpage/2009/June/afghanistan-identifies-

cutting-agents-for-heroin.html.

64. See Press Release, Attorney General Martha Coakley, Annie Dookhan Pleads

Guilty to Tampering with Evidence, Obstruction of Justice (Nov. 22, 2013),

http://www.mass.gov/ago/news-and-updates/press-releases/2013/2013-11-22-dookhan-plea.

html (“The investigation revealed that Dookhan tampered with evidence by altering the

substances in the vials that were being tested at the lab. Investigators identified six specific

instances where Dookhan tampered with the testing vials, five originating in Suffolk County

and one in Bristol County. Investigators were able to retest samples to corroborate this

because Dookhan only altered the substances while they were in the testing vials. She did not

alter the original samples.”); see also Andy Metzger, As State Faces Expensive Clean-Up,

Dookhan Professes Innocence, LOWELL SUN, Dec. 20, 2012, http://www.lowellsun.c

om/breakingnews/ci_22230663/dookan-be-arraigned-thursday#ixzz2O8ma8TZN (quoting

Assistant Attorney General Anne Kaczmarek as stating in court: “Ms. Dookhan was not


these frauds is unclear. Although Dookhan has stated that “no prosecutors or police

pressured her to alter drug tests on their behalf,”65 her motives remain a mystery.

One early lead was a string of flirtatious personal emails between Dookhan and a

local prosecutor.66 Although investigators do not believe there was any wrongdoing,

that prosecutor subsequently resigned.67

Laboratory safeguards, of course, should have uncovered Dookhan’s fraud.

The state laboratory where she worked adhered to industry standard protocols, such

as the testing of all samples by two chemists and the use of sign-out logs for

evidence.68 Nonetheless, supervision at the laboratory appears to have been lax.

Despite Dookhan’s “unusually high output,” and complaints from colleagues about

her “shoddy work habits,” supervisors did nothing for more than a year.69 Such

complaints should have raised a red flag for any supervisor:

Dookhan was the most productive chemist in the lab, routinely testing

more than 500 samples a month, while others tested between 50 and

150. But one co-worker told state police he never saw Dookhan in

front of a microscope. A lab employee saw Dookhan weighing drug

samples without doing a balance check on her scale.70

It was not until June 2011 that Dookhan finally came under investigation,

only after supervisors caught her removing 90 samples from the evidence vault

without signing them out.71 Had supervisors paid attention to the many suspicious

details about Annie Dookhan, they likely could have uncovered her deception much

sooner. Her outlandish claims and propensity for exaggeration—or, more precisely,

flat out lying—included: claiming that she graduated magna cum laude from high

school (which one cannot do), lying about her previous salary (she gave herself a

22% raise), telling colleagues that she completed a Ph.D. dissertation in Chemistry

from Harvard in only two years while working full-time (Harvard does not offer

two-year, part-time Ph.D. programs), and conferring on herself the (unearned and,

tampering with the actual drug sample. She was tampering with the testing vials. She was

doing that, we believe, to make her original confirmation of the drugs match what the [mass

spectrometer] objective test came back to”).

65. Scott Allen & Andrea Estes, Prosecutor with Ties to Drug Lab Chemist

Resigns, BOSTON GLOBE, Oct. 17, 2012, http://www.bostonglobe.com/metro/2012/10/17/

norfolk-prosecutor-with-ties-dookhan-resigns/nrFrlJwBNSTQy7a82cRIqI/story.html.

66. Id.

67. Id. The prosecutor was Assistant District Attorney George Papachristos, from

the Norfolk County District Attorney’s Office. Dookhan tested drugs for cases that he

prosecuted, but never testified at any of his trials. Id.

68. Lazar, supra note 6.

69. Id.

70. Annie Dookhan, Chemist at Massachusetts Crime Lab, Arrested for Allegedly

Mishandling Over 60,000 Samples, CBS NEWS (Sept. 28, 2012),

http://www.cbsnews.com/8301-504083_162-57522579-504083/annie-dookhan-chemist-at-

mass-crime-lab-arrested-for-allegedly-mishandling-over-60000-samples.

71. Estes et al., supra note 4. See also Milton J. Valencia, State says chemist at

drug lab imperiled evidence, BOSTON GLOBE, Aug. 31, 2012, at A1.


for that matter, nonexistent) titles of “on-call supervisor for chemical and biological

terrorism” and FBI “special agent of operations.”72

Although removed from performing new laboratory tests in 2011, Dookhan

continued to testify in cases for months.73 All told, Dookhan testified in at least 150

trials during this three-year period,74 fully in compliance with the requirements of

Melendez-Diaz, and yet not one defense attorney discovered her fraud using the

“crucible of cross examination.”75 Nor did any defense attorney discover that she

had been suspended from laboratory work, that she had exchanged personal emails

with prosecutors, or even that she lied on her resumé by falsely claiming to have a

Masters of Science in Chemistry.76 Equally illuminating is that, nearly two years

after this scandal first broke, there is not a single press account of a defense attorney

who raised the issue of falsified lab results on appeal or demanded the retest of

evidence before Dookhan’s misconduct was made public.77 Thousands of appeals

have been filed since.

In December 2012, Dookhan herself was indicted in Massachusetts

Superior Court on 27 counts of obstruction of justice, tampering with evidence, and

perjury.78 Nearly a year later, in November 2013, Dookhan entered a guilty plea to

all 27 counts, and received a prison sentence of 3–5 years, in excess of the state

sentencing guideline of 1–3 years; prosecutors, however, had sought a 5–7-year

term.79

72. Sally Jacobs, Annie Dookhan Pursued Renown Along a Path of Lies, BOSTON

GLOBE, Feb. 3, 2013, http://www.bostonglobe.com/metro/2013/02/03/chasing-renown-path-

paved-with-lies/Axw3AxwmD33lRwXatSvMCL/story.html; Andrea Estes, Indicted Drug

Analyst Annie Dookhan’s E-mails Reveal Her Close Personal Ties to Prosecutors, BOSTON

GLOBE, Dec. 20, 2012, http://www.boston.com/news/local/massachusetts/2012/12/20/indict

ed-drug-analyst-annie-dookhan-mails-reveal-her-close-personal-ties-prosecutors/A37GaatH

LKfW1kphDjxLXJ/story.html.


74. Id.

75. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 317 (2009) (citing Crawford

v. Washington, 541 U.S. 36, 61–62 (2004)).


77. Although the Massachusetts Attorney General’s Office has compiled a list of

all cases where Dookhan may have tested evidence, that information has not been made

public. Due to confidentiality restrictions, the list is only available to defense attorneys who

represent clients convicted of drug offenses during the years where Annie Dookhan worked

at the Massachusetts crime laboratory. See Mass. Dep’t of Crim. Just. Info. Serv., Agreement

of Non-Disclosure of CORI, http://www.massbar.org/media/1286464/non%20

disclosure%20form.pdf (last visited May 25, 2014). This understandable confidentiality

restriction has, however, forced me to rely on (the absence of) press stories of defense

attorneys’ statements as support for this point.

78. Commonwealth v. Dookhan, No. BRCR2013-00009 (Mass. Super. Ct. Jan.

08, 2013). See also Andrea Estes & John R. Ellement, State Chemist Faces 24 More Charges

in Lab Scandal, BOSTON GLOBE, Dec. 17, 2012, http://www.bostonglobe.com/metro

/2012/12/17/annie-dookhan-indicted-counts-obstruction-justice-due-court-dec/SgtVlcusG

XCYcCaMA7V4JJ/story.html.

79. Coakley, supra note 64.


B. Lessons from the Dookhan Scandal

By analyzing the cases on which Annie Dookhan worked, several lessons

can be gleaned. Some are obvious: most criminal cases are resolved by plea

agreements, and sending flirty emails to a drug lab chemist is bad for a prosecutor’s

job security. The Dookhan scandal, however, reveals three important lessons that

should be acknowledged when devising solutions to prevent future wrongdoing.

After discussing these three lessons below, I address possible reforms in Part III.

1. Cross-Examination Is Ineffective at Discovering Flawed Forensic Testing

Annie Dookhan took the stand approximately 150 times, yet not one

defense attorney discovered her falsified lab work on cross-examination.80 Although

it is unclear from the record whether defense attorneys refused to stipulate to her

testimony, or whether prosecutors in those cases wanted her to testify, it is clear that

the Melendez-Diaz rule was being followed, but did not expose Dookhan’s fraud.81

Her 150-0 record on the witness stand upends one of the pillars of Melendez-Diaz—

the belief that an “analyst who provides false results may, under oath in open court,

reconsider his false testimony.”82

How did Dookhan’s lies go undetected? There are no reports of her being

a particularly good liar; indeed, she appears to have confessed immediately to

police. 83 The more likely explanation is that jurors afford great deference to

scientific testimony. The Supreme Court has acknowledged the potential danger of

jurors perceiving an “aura of infallibility” about scientific evidence, and has banned

certain kinds of testimony—such as polygraph tests—as a result.84 It may also be

evidence of what some academics have called “the CSI Effect,” whereby jurors

“exaggerate the value of scientific evidence, viewing it as overly conclusive”

because television crime shows have conditioned them to accept it as always true.85

80. See supra text accompanying notes 68–70.

81. Interestingly, this problem appears not to be limited to the United States, and

has been observed in other common law adversarial systems that are also grappling with the

problem of confronting forensic testing. A recent study in Australia—which retains the

common-law right to confrontation—also concluded that cross-examination is rarely

effective at rebutting even clearly flawed testimony by laboratory technicians and other

scientific expert witnesses. See Gary Edmond & Mehera San Roque, The Cool Crucible:

Forensic Science and the Frailty of the Criminal Trial, 24 CURRENT ISSUES IN CRIM. JUSTICE

51, 55–56 (2012), available at http://www.law.unsw.edu.au/sites/law.unsw.edu.au

/files/docs/posts/cool_crucible.pdf; see also Gary Edmond, Impartiality, efficiency or

reliability? A critical response to expert evidence law and procedure in Australia, 42 AUS. J.

FORENSIC SCI. 83, (2010), available at http://njca.com.au/wp-content/uploads/2013/07/Gary-

Edmond-Impartiality-efficiency-or-reliability-paper.pdf.

82. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 (2009) (internal citations

omitted).

83. Matt Stout, Police Report: Colleagues Detail Chemist’s ‘Breakdown,’

BOSTON HERALD, Sept. 27, 2012, http://bostonherald.com/news_opinion/local_coverage/

2012/09/police_report_colleagues_detail_chemist_s_breakdown.

84. United States v. Scheffer, 523 U.S. 303, 314 (1998).

85. Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and

Justice in Reality and Fiction, 115 YALE L.J. 1050, 1084 (2006). Tyler responds to other

academics who claim that the “CSI Effect” makes jurors more likely to acquit because


Under this theory, jurors may see defense cross-examination as a futile attempt to

muddy indisputable scientific facts. By this view, unless the defense calls its own

expert to retest the evidence, any potential “CSI Effect” will accrue to the

prosecution’s benefit. Only a retest of the evidence—creating a battle of the

scientific experts—would put the defendant’s case on equal footing.

Even with retesting, false testimony about innocent defendants could still

occur if the laboratory analyst mislabeled or contaminated the original sample—

either accidentally or maliciously. While deeply troubling, the Dookhan scandal

shows that cross-examination also failed to deter, or even discover, this kind of

fraud. Although beyond the scope of this Article, it appears that the only solution

for these types of cases is better laboratory supervision, training, and hiring.

2. The Dookhan Scandal Will Create a Windfall for Many Defendants

Although Dookhan’s fraud has met universal condemnation, public

opinion has differed over what the proper response should be. To many people, the

defendants who will be released from prison because of the Dookhan scandal are

guilty individuals who are receiving an undeserved windfall.86 Others, including

Massachusetts Attorney General Martha Coakley, have stressed that Dookhan’s

actions cannot be the basis of criminal convictions because they had “corrupted the

integrity of the entire criminal justice system.”87 To date, courts in Massachusetts

have held 2,922 hearings for “Dookhan defendants” seeking dismissal of their cases;

more than 600 defendants were released after their convictions were vacated. 88

Among those released, one defendant—promptly rearrested for possession of a

stolen gun—was well aware of why he was set free, telling police: “I just got out

thanks to Annie Dookhan. I love that lady.”89

Regardless of one’s views on releasing “Dookhan defendants,” an analysis

of the publicly available cases on which Dookhan worked reveals a stark fact: before

this scandal broke, not one defendant challenged the accuracy of Dookhan’s drug

tests on appeal.90 Of the 21 appellate cases (all of the cases available using public

television crime programs make them expect perfect cases—complete with ironclad scientific

evidence—in real life. Id. See also United States v. Fields, 483 F.3d 313, 355 n.39 (5th Cir.

2007) (discussing “the CSI Effect”). On a comparative note, it appears that Australian jurists

worried about the “CSI Effect” long before the television show arrived there. See Regina v

Duke, (1979) 22 SASR 46, 48 (Austl.) (King, C.J.) (warning that jurors are “overawed by the

scientific garb in which the evidence is presented and attach greater weight to it than it is

capable of bearing.”).

86. See, e.g., John R. Ellement, Man Freed in Drug-Lab Scandal is Arrested on

Similar Charges, BOSTON GLOBE, Oct. 27, 2012, http://www.bostonglobe.com/me

tro/2012/10/26/man-freed-drug-lab-scandal-arrested-similar-chares/V1pyolPS9zMkVWLfh

4wyZJ/story.html.

87. Mark Arsenault et al., Former Drug Lab Chemist Arrested, Actions Detailed,

BOSTON GLOBE, Sept. 28, 2012, http://www.bostonglobe.com/metro/2012/09/28/chemist-

mass-state-drug-lab-scandal-facing-charges-she-falsified-reports-credentials/27kK2cb2foy

SyFjUy3XFeP/story.html.

88. Valencia & Ellement, supra note 5.

89. Seelye & Bidgood, supra note 54.

90. A word about my methodology: As discussed in note 77, supra, the

Massachusetts Attorney General’s Office has created a database of cases where Dookhan


searches that were filed before this scandal became public in September 2012) in

which Dookhan is specified as the chemist, not one challenges the drug tests

themselves, or requests retesting of evidence as relief, despite the fact that these

remedies are available under the Massachusetts Rules of Criminal Procedure.91

Since the Dookhan scandal has hit the press, however, thousands of appeals have

claimed that the drug tests were erroneous.92 The decisions so far, from both the

state’s highest court and federal judges in the District of Massachusetts, have

emphasized a desire to avoid windfalls to guilty defendants.93

Now nearly two years after this scandal broke, investigators and defense

attorneys have identified only one case where the defendant appears to have actually

been innocent.94 Jeffrey Banks (a.k.a. Jeffrey Solomon) was arrested and prosecuted

for selling cocaine in 2011.95 Banks maintained that he was actually scamming his

customers by selling fake narcotics; tests performed by Dookhan, however, showed

that the substance was cocaine. 96 Banks eventually pleaded guilty, and never

requested a retest of the evidence under the Massachusetts Rules of Criminal

Procedure. 97 Since the Dookhan scandal broke, the Massachusetts State Police

retested the sample, and determined it was not cocaine (or any other controlled

tested evidence, but has only allowed defense attorneys with clients affected by the Dookhan

scandal to access that information. Due to confidentiality restrictions, the list of cases has not

been made public. My original goal was to examine all of the Dookhan appeals that were filed

after the scandal became public to see whether any of those defendants had previously

challenged the reliability of her testing. Since Massachusetts’ confidentiality restrictions

made that impossible, I instead searched for all cases where Dookhan was named as the

chemist before this scandal broke, which yielded the 24 appeals discussed in this Part.

Unfortunately, trial court documents in Massachusetts are not available electronically.

91. See MASS. R. CRIM. P. 14(b)(2), 41 (2009) (allowing appointment of defense

experts, who—presumably in cases like these—would conduct retesting). Justice Kennedy

also points out this fact in his dissenting opinion in Melendez-Diaz v. Massachusetts, noting

that the “petitioner made no effort, before or during trial, to mount a defense against the

analysts’ results. Petitioner could have challenged the tests’ reliability by seeking discovery

concerning the testing methods used or the qualifications of the laboratory analysts. . . . He

did not do so.” 557 U.S. 305, 338 (2009) (Kennedy, J., dissenting)

92. Valencia & Ellement, supra note 5.

93. See, e.g., Commonwealth v. Scott, 5 N.E. 3d 530, 548–49 (Mass. 2014) (“We

therefore remand the defendant’s case for the judge to determine whether, in the totality of

the circumstances, the defendant can demonstrate a reasonable probability that had he known

of Dookhan’s misconduct, he would not have admitted to sufficient facts and would have

insisted on taking his chances at trial.”); United States v. Wilkins, 943 F. Supp. 2d 248, 255

(D. Mass. 2013) (“Here, neither [defendant] makes a claim of actual innocence. Thus, any

impeaching material regarding Dookhan’s mishandling of the evidence in theirs or other cases

would only be relevant at trial to the extent that it might be used to challenge the chain of

custody of the drugs at issue, or possibly to impeach the efforts of the substitute chemist to

repair the damage done by Dookhan. Neither of these purposes, as Ruiz makes clear, has any

relevance to the validity of defendants’ guilty pleas.”).

94. Commonwealth v. Solomon, MICR2011-00114 (Mass. Sup. Ct. Jan. 26,

2012).

95. Id.

96. Id.

97. Id.


substance).98 Because this case did not go to trial, it is impossible to evaluate what

value cross-examination would have had; retesting, however, ultimately exonerated

him.

The absence of appeals on drug testing could, of course, be evidence of

other factors at work, such as incompetent counsel. Alternatively—and more

problematically—the lack of such appeals could also indicate a case where the

defendant knowingly possessed drugs, but Dookhan fraudulently increased the

reported weight to clear a statutory threshold for an increased sentence. Admittedly,

this problem would not be one that retesting of evidence could solve, but cross-

examination was nonetheless equally ineffective at stopping it.

3. The Dissenting Justices’ Predictions About Increased Litigation Following

Melendez-Diaz Were Correct

Justice Kennedy’s opinion in Melendez-Diaz warned that the majority

“misunderstands how criminal trials work,” and that the decision would have far-

reaching consequences for criminal prosecutions. 99 Specifically, the dissent

predicted “zealous defense counsel will defend their clients” using the “formidable

power” that the majority’s decision granted them to demand that laboratory analysts

testify at trial.100 Justice Kennedy further speculated that the confusion about who

qualifies as an “analyst” under the majority’s rule101 would only strengthen the hand

of defense attorneys to object on merely “technical grounds,” resulting in “a windfall

to defendants.”102

While Justice Kennedy’s predictions in Melendez-Diaz focused on

problems at trial, Justice Breyer’s concurring opinion in Williams noted that the

same kinds of pro forma objections would also arise on appeal. Specifically, Justice

Breyer worried that because there was “no logical stopping place between requiring

the prosecution to call as a witness one of the laboratory experts who worked on the

matter and requiring the prosecution to call all of the laboratory experts who did

so,”103 defense attorneys would have an easy issue to appeal.

An examination of the 21 “pre-scandal” appeals where Dookhan tested

drug samples validates the predictions of both Justice Kennedy and Justice

Breyer.104 Among those cases, in every instance where the prosecution did not offer

98. Estes & Ellement, supra note 78.

99. Melendez-Diaz v. Massachussetts, 557 U.S. 305, 354 (2009) (Kennedy, J.,

dissenting).

100. Id. at 353–55.

101. Id. at 337–38.

102. Id. at 342–43.

103. Williams v. Illinois, 132 S. Ct. 2221, 2246 (2012) (Breyer, J., concurring).

104. United States v. Gurley, 860 F. Supp. 2d 95 (D. Mass. 2012); Commonwealth

v. Charles, 923 N.E.2d 519 (Mass. 2010); Commonwealth v. Flores, 993 N.E.2d 751 (Mass.

App. Ct. 2013); Commonwealth v. Neves, 999 N.E.2d 502 (Mass. App. Ct. 2013);

Commonwealth v. Beatrice, 965 N.E.2d 226 (Mass. App. Ct. 2012); Commonwealth v.

Charles, 961 N.E.2d 622 (Mass. App. Ct. 2012); Commonwealth v. Charlton, 962 N.E.2d 203

(Mass. App. Ct. 2012); Commonwealth v. Percy, 966 N.E.2d 866 (Mass. App. Ct. 2012);

Commonwealth v. Hood, 957 N.E.2d 1131 (Mass. App. Ct. 2011); Commonwealth v. Howell,

940 N.E.2d 519 (Mass. App. Ct. 2011); Commonwealth v. Lopez, 957 N.E.2d 1131 (Mass.


the testimony of both chemists who tested the drugs in evidence, defense counsel

appealed, citing Melendez-Diaz.105 Regardless of which chemist appeared—either

the “primary” or “confirmatory” chemist—the defense briefs insisted on the

importance of testimony from both chemists, and asserted the right to confront all

analysts under Melendez-Diaz. Notably, however, none of these briefs challenged

the actual forensic science, or requested retests; they only raised what Justice

Kennedy’s opinion called “technical grounds.” 106 Equally notable is that in the

remainder of these 21 cases where defendants did not stipulate to the forensic

reports, the prosecution called both laboratory technicians—producing the “onerous

burden” that Justice Kennedy worried about when multiple analysts are involved in

testing.107 Concededly, cases will remain where the defense will stipulate to forensic

test results, or alternatively where the prosecution will want the chemist to testify in

order to make the case more vivid for the jury.108 Nonetheless, the prosecution is

bearing the burden of producing analysts for testimony in many cases where no

truth-seeking function will be served.

III. PROPOSALS FOR REFORM

Reform proposals in the area of forensic testing must consider the lessons

of the Annie Dookhan scandal, especially the ineffectiveness of cross-examination

at exposing flawed scientific evidence. Although the danger of flawed forensic

testing certainly exists—from either negligence or malice—steps can be taken to

mitigate the risk. In this Subpart, I propose reforms both in the laboratories

themselves and in the availability of retesting for criminal defendants.

App. Ct. 2011); Commonwealth v. Martinez, 958 N.E.2d 536 (Mass. App. Ct. 2011);

Commonwealth v. Pierre, 958 N.E.2d 537 (Mass. App. Ct. 2011); Commonwealth v. Villoria-

Tavares, 954 N.E.2d 591 (Mass. App. Ct. 2011); Commonwealth v. Contreras, 937 N.E.2d

72 (Mass. App. Ct. 2010); Brief for Appellant, Commonwealth v. Blue, No. 2012-P-0966

(Mass. App. Ct. Sept. 4, 2012), 2012 WL 4096005; Brief for Commonwealth,

Commonwealth v. Pierre, No. 11-P-494 (Mass. App. Ct. Aug. 17, 2012), 2012 WL 3821965;

Brief for Defendant, Commonwealth v. Valentin, No. 2012-P-104 (Mass. App. Ct. July,

2012), 2012 WL 3233185; Brief for Defendant, Commonwealth v. Santos, No. 12-P-31

(Mass. Ct. App. Jun. 15, 2012), 2012 WL 2563771; Brief for Commonwealth,

Commonwealth v. Sylvester, No. 11-P-1615 (Mass. App. Ct. May 21, 2012), 2012 WL

2138194; Brief for Appellant, Commonwealth v. McLaughlin, No. 2011-P-0850 (Mass. App.

Ct. Apr. 6, 2012), 2012 WL 1431205.

105. E.g., Brief for Defendant-Appellant at 21–24, Commonwealth of

Massachusetts v. Charlton, 962 N.E.2d 203 (2012) (No. 10-P-1042), 2010 WL 3415978.

106. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 342 (Kennedy, J., dissenting).

107. Id. at 331.

108. See Old Chief v. United States, 519 U.S. 172, 183 (1997). In Old Chief, the

defendant was charged with being a felon in possession of a firearm. Although the defendant

stipulated to the fact that he had a prior felony conviction, the prosecutor insisted on proving

this fact by testimony at trial—including the specific prior felony: assault causing serious

physical injury. The Supreme Court found the admission of that particular evidence unduly

prejudicial and overturned the conviction, but nonetheless strongly supported the importance

of “narrative integrity” to a prosecutor’s case in general.


A. Laboratory Safeguards

Any effort to improve the reliability of forensic testing, and to prevent

future Annie Dookhans, must start with additional safeguards in the laboratories

themselves. Below is a list of reforms—many of which have been endorsed by the

National Academy of Sciences 109 —that could be implemented by the labs

themselves, or through legislative action:

Independent accreditation: all forensic laboratories, and

individual technicians, could be required to undergo accreditation

by an independent association, such as the American Society of

Criminal Lab Directors Laboratory Accreditation Board

(ASCLD/LAB).110 Outside accreditation would ensure uniform,

high-quality national standards. This requirement for

accreditation—of both labs and technicians—was one of the core

recommendations of the National Academy of Science’s 2009

report on improving forensic science.111

Unannounced inspections: legislators could require all crime

laboratories—both government run and privately operated—to

submit to unannounced visits by either government or private

inspectors. Such inspections would ensure that accreditation

standards are actually being met.

Integrity testing: to monitor crime laboratories for incompetent or

fraudulent work, “test” or “dummy” samples could periodically

be sent to the lab for analysis. These random samples would be

indistinguishable except for a control number known only to

outside testers. For analysts suspected of misconduct, more

elaborate integrity tests, e.g., undercover requests for “favorable”

testing results, could be used, similar to what many police

departments have implemented in their Internal Affairs units.112

109. See NAT’L ACAD. OF SCIS., supra note 16, at S-14–S-24.

110. See Cusick, supra note 50. However, even the accreditors may need

supervision according to Cusick. Her article notes criticism of the ASCLD’s inspection

procedures. According to one defense attorney who served as an advisor to the National

Academy of Science: “When ASCLD[] comes to a laboratory for an inspection, it announces

that they’re coming. It’s not a surprise inspection. Everybody gets a chance to clean up their

act.” Id.

111. NAT’L ACAD. OF SCIS., supra note 16, at S-19.

112. E.g., COMM’N TO COMBAT POLICE CORRUPTION, NYPD INTEGRITY TESTING

PROGRAM (2000), available at http://www.nyc.gov/html/ccpc/assets/downloads/pdf/iab

_integrity_testing_program_march2000.pdf. “An integrity test is a ‘sting operation’—an

artificial situation designed to test a subject officer’s adherence to the law and Department

guidelines. Undercover IAB officers create typical police encounter scenarios—involving,

for example, narcotics or domestic violence—and then monitor the responding officer’s

behavior. IAB investigators also use surveillance equipment to monitor the subject officer

and are careful not to restrict the subject’s freedom to perform during the test.” Id. at 1. Such

integrity tests may be “random,” or “targeted” to a particular officer who is suspected of

wrongdoing. Id. at 3.


Criminal penalties: in conjunction with integrity testing,

legislators could increase prison sentences for analysts who

tamper with evidence, and require that notices of such sentences

be prominently displayed at all testing facilities. 113 Although

experts dispute the value of longer prison sentences for some

crimes, there is strong evidence that the deterrent value of prison

is high for individuals in white-collar jobs like a laboratory

analyst.114

Tighter evidence controls: additional safeguards could be devised

for access to evidence vaults, and for logging which analysts have

accessed samples for testing.

Monitor analysts’ workstations: entire tests could be recorded,

with full disclosure to defense counsel. Although this requirement

could be burdensome for testing procedures that use multiple

pieces of equipment or workstations, for some tests it would be

easy to implement, and would provide vivid evidence for

prosecutors as well.

Defendant access: allow access to state DNA databases (via the

Combined DNA Index System) for defendants who wish to prove

that crime scene evidence matches other felons in the database.

This recommendation has also been endorsed by the National

District Attorney’s Association.115

B. Retesting of Evidence

Although constrained by the current Melendez-Diaz rule, there nonetheless

are criminal procedure reforms that would improve the accuracy of forensic testing

and reduce the chance that defendants are convicted based on erroneous scientific

evidence. Even without a change in doctrine from the Supreme Court, one major

reform that legislators (or potentially individual prosecutors’ offices 116 ) could

113. Support for longer prison terms appears to be present in Massachusetts, as seen

in the disappointment expressed by State House Republican Leader Bradley H. Jones, Jr.

about the length of Dookhan’s sentence: “You walk away feeling this is really inadequate to

what has happened, and the ramifications that it has had, and is going to have, on the criminal

justice system . . . . Three to five years is not adequate.” Valencia & Ellement, supra note 5.

114. See Richard S. Frase, Punishment Purposes, 58 STAN. L. REV. 67, 80 (2005)

(“[S]uch [white collar] offenders have many lawful alternatives and much to lose from being

convicted, regardless of the penalty.”).

115. Ethan Bronner, Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data,

N.Y. TIMES, Jan. 3, 2013, http://www.nytimes.com/2013/01/04/us/lawyers-saying-dna-

cleared-inmate-pursue-access-to-data.html.

116. This reform role for prosecutors comports with both the letter and spirit of

their professional responsibility obligations, as stated in the American Bar Association’s

Standards for Criminal Justice: “It is an important function of the prosecutor to seek to reform

and improve the administration of criminal justice. When inadequacies or injustices in the

substantive or procedural law come to the prosecutor’s attention, he or she should stimulate

efforts for remedial action.” AM. BAR ASSOC., ABA STANDARDS FOR CRIMINAL JUSTICE:

PROSECUTION AND DEFENSE FUNCTION §3-1.2(d) (1993), available at


undertake is to institute a system to streamline retesting of evidence upon a

defendant’s request.117 If designed properly, such a reform could provide innocent

defendants with vital exculpatory evidence, while incentivizing against frivolous

use. Here is how such a “Retesting Program”118 could operate:

When providing pretrial discovery to the defense, such as the

existence of forensic evidence, results from testing, and the

identity of expert witnesses,119 the prosecution’s discovery letter

would also include information about the office’s “Retesting

Policy.”

For evidence that can be analyzed using nonconsumptive testing,

i.e., where the test does not destroy the sample, or destroys only a

negligible portion of it, samples would be made available for

retesting by a neutral laboratory, which must be accredited by an

independent association, such as the American Society of

CLD/LAB, to avoid the proliferation of sham “defense-friendly”

labs.120

If independent laboratories are not available in the area, or are

prohibitively expensive, the government lab could perform the

retest, provided that a different analyst was used, and integrity

safeguards were in place. Such safeguards could include random

submission of “test” samples not affiliated with any case to ensure

the analysts’ integrity.

For evidence that requires consumptive testing, i.e., will be

destroyed by the test itself, leaving no material for future testing,

if possible, the defendant should be given notice and allowed to

have an expert observe the test.121 Alternatively, the procedure

http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standar

ds_pfunc_blk.html.

117. The American Bar Association, in the context solely of DNA testing, has

created model rules to allow defendants access to retesting by an independent expert. See AM.

BAR ASSOC., ABA STANDARDS FOR CRIMINAL JUSTICE: DNA EVIDENCE §4.2 (“Defense

testing and retesting”) (2007), available at http://www.americanbar.org/publication

s/criminal_justice_section_archive/crimjust_standards_dnaevidence.html#4.2.

118. Reformers in Australia have called for a similar program, bemoaning the fact

that only well-resourced defendants have access to independent retesting of evidence. See

Edmond & San Roque, supra note 81, at 59.

119. See, e.g., FED. R. CRIM. P. 16(a)(1); MASS. R. CRIM. P. 14(a) (2009).

120. An analogous problem has occurred with doctors who are known to be

“friendly” to applicants for disability retirement benefits. In a recent case involving retirees

from the Long Island Rail Road in New York, doctors were indicted for submitting false

medical diagnoses so that patients could receive generous disability pensions. See, e.g.,

Doctor Tells U.S. Judge He Created Fake L.I.R.R. Injury Claims, N.Y. TIMES, Jan. 18, 2013,

http://www.nytimes.com/2013/01/19/nyregion/doctor-admits-faking-disability-claims-for-

lirr-workers.html.

121. This safeguard for consumptive testing is similar to the procedure

recommended by the American Bar Association. See AM. BAR ASSOC., ABA STANDARDS FOR

CRIMINAL JUSTICE: DNA EVIDENCE, supra note 116, at §3.4. Of course, in many cases,


could be recorded. If the defense seeks to conduct a consumptive

test, an accredited government lab could carry it out with a

defense expert observing the procedure.

For indigent defendants, retests would be performed at the

government’s expense. Although indigent defendants can petition

federal courts for appointment of defense expert witnesses at the

government’s expense, 122 and also under certain states’

procedural rules,123 this proposed procedure would simplify the

process by guaranteeing a free retest—subject to the important

caveat in the final bullet point below.

In order to apply for any of these retests (if done at the

government’s expense), defendants must execute a signed written

agreement with prosecutors, after conferring with their attorney.

The agreement would stipulate that the defendant requested a

second forensic test, and that the prosecution could introduce this

fact, i.e., that the defendant requested it, at trial.

Because of this final requirement, such a program would incentivize only

innocent defendants to demand retests, thus assuring that government funds are not

wasted on frivolous testing requests. Of course, while prosecutors must act fairly to

all parties, avoiding wrongful convictions of actually innocent defendants is an

ethical duty. Additionally, even if many defendants do not opt for such retesting, the

mere existence of such a program could serve as another deterrent to misconduct by

laboratory analysts.

Admittedly, this proposal does not resolve all potential problems,

particularly in cases where the entire original sample was contaminated or

mislabeled, by either negligence or malice. As the Annie Dookhan scandal

unfortunately shows, however, cross-examination is also ill-suited to discover such

misconduct. For these cases, the legislative reforms suggested above—especially

accreditation and integrity testing for laboratories and law enforcement agencies—

remain the best safeguard.

IV. RETHINKING CONFRONTATION CLAUSE JURISPRUDENCE

Prosecutors and legislators, of course, cannot reshape Confrontation Clause

jurisprudence; any such reform must come from the Supreme Court in future cases

on forensic testing. A pragmatic approach to ensuring reliable scientific testimony

can already be seen in the opinions of Justice Kennedy in Melendez-Diaz, and

Justice Breyer in Williams. In particular, Justice Breyer’s opinion, after surveying a

wide array of cases and expert literature, concluded that cross-examination “did not

prevent admission of faulty evidence.” 124 The Melendez-Diaz jurisprudence,

consumptive tests may be done before a defendant is ever identified, making notice

impossible—the reason for my qualifier “if possible.”

122. See Ake v. Oklahoma, 470 U.S. 68, 76–77, 86 (1985); see also Caldwell v.

Mississippi, 472 U.S. 320, 323 n.1 (1985).

123. See, e.g., CAL. EVID. CODE §§ 730–33; TENN. SUP. CT. R. 13.



however, openly rejects a pragmatic approach to the issue of confronting scientific

evidence, instead embracing “a procedural rather than a substantive” way of

ensuring accuracy, grounded in Justice Scalia’s view of the Sixth Amendment.125 In

this final section, I critique this interpretation of the Confrontation Clause, arguing

that even under a properly conceived originalist view, the Melendez-Diaz line of

cases is incorrectly decided. Instead, the Court should take a pragmatic approach to

interpreting the Sixth Amendment. I conclude by offering a proposed new rule for

Confrontation Clause jurisprudence regarding forensic testing.

A. 18th Century Solutions to 21st Century Problems

The Court’s opinion in Crawford, on which the Melendez-Diaz line of

cases is based, supported its originalist holding with a wide range of historical

sources, including the Framers, Blackstone, Shakespeare, and even St. Paul. 126

Luminaries though they all were, unfortunately none of these historical figures knew

anything about forensic testing, much less how best to examine its reliability in

court. This shortcoming leads to the critical flaw in the reasoning of Melendez-Diaz:

merely because the Framers concluded that cross-examination was the best method

of determining reliability in the accounts of eyewitnesses does not mean the Framers

would consider it to be the best—or the only constitutionally guaranteed—method

for verifying forensic test results, which did not even exist in their lifetimes. The

Framers guaranteed a right of confrontation, but given that the Sixth Amendment

scarcely received any attention in the debates in Congress over the Bill of Rights,127

there is “virtually no evidence of what the drafters of the Confrontation Clause

intended it to mean.”128 Nor does the text of the Sixth Amendment resolve this

uncertainty: “In all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him . . . .”129 Thus, it is only a guess by the

Court as to what form that confrontation must take when entirely new categories of

evidence arise. Therefore, my dispute with Justice Scalia’s reasoning is not about

“[d]ispensing with confrontation” entirely, 130 but rather with the form that

confrontation should take.

125. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 317–18 (2009) (citing

Crawford v. Washington, 541 U.S. 36, 61–62 (2004)).

126. E.g., Crawford, 541 U.S. at 61–62 (citing 3 WILLIAM BLACKSTONE,

COMMENTARIES at 373) (“This open examination of witnesses . . . is much more conducive to

the clearing up of truth.”); Coy v. Iowa, 487 U.S. 1012, 1015–16 (1988) (Scalia, J.) (quoting

Acts 25:16) (“It is not the manner of the Romans to deliver any man up to die before the

accused has met his accusers face to face, and has been given a chance to defend himself

against the charges.”); id. (quoting Richard II, Act 1, sc. 1) (“Then call them to our presence—

face to face, and frowning brow to brow, ourselves will hear the accuser and the accused

freely speak . . . .”).

127. See THE CONGRESSIONAL REGISTER; OR, HISTORY OF THE PROCEEDINGS AND

DEBATES OF THE FIRST HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA 2:228

(Aug. 17, 1789) (showing no discussion of the right of confrontation), available at

https://archive.org/details/congressionalreg02unit.

128. See White v. Illinois, 502 U.S. 346, 359 (1992) (Thomas, J., concurring in part

and concurring in judgment).

129. U.S. CONST., amend. VI.

130. Crawford, 541 U.S. at 62.


Such reservations about Justice Scalia’s reformulation of the Confrontation

Clause were even present in Crawford, where Chief Justice Rehnquist warned of the

far-reaching ramifications of the Court’s new rule:

It is one thing to trace the right of confrontation back to the Roman

Empire . . . [but it] is an odd conclusion indeed to think that the

Framers created a cut-and-dried rule with respect to the admissibility

of testimonial statements when the law during their own time was not

fully settled.131

History need not be thrown out of the equation entirely, however. The

historical example of copyists, cited by both the majority and dissent in Melendez-

Diaz,132 illustrates that a more pragmatic view of the Confrontation Clause could be

acceptable, even to an originalist. Both opinions agree that during the Framers’ era,

courts accepted affidavits from copyists without live testimony. Such affidavits

certified that copies of official records, such as marriage certificates that might be at

issue in bigamy prosecutions, were accurate. While the two opinions spar over

whether or not accurate work of eighteenth century copyists is analogous to modern

day laboratory technicians, they both overlook the more important question: how

would an eighteenth century defendant have challenged erroneous copies? Would

an innocent eighteenth century defendant on trial for bigamy have opted for a

blistering cross-examination about the copyists’ spectacles, quills, and parchment?

Of course not. He would demand that the original marriage certificate be produced.

Similarly, while a modern-day defendant might occasionally score points

by cross-examining laboratory analysts—perhaps if they appeared disorganized or

disheveled, or had an obvious conflict of interest—any meaningful confrontation is

ultimately not with the analyst but with the evidence itself. Moreover, this secondary

importance of the witness to the underlying test will only grow starker as forensic

testing becomes more automated. Even with an originalist view, however, it is

entirely plausible that if the Framers could have imagined that the ultimate “witness”

mentioned in the Sixth Amendment would one day take the form of laboratory tests,

they would have opted for the “centrifuge of retesting” instead of the “crucible of

cross-examination.”133

131. Id. at 73 (Rehnquist, C.J., concurring in judgment).

132. Compare Melendez-Diaz v. Massachusetts, 557 U.S. 305, 322–23 (2009), with

id. at 347–48 (Kennedy, J., dissenting).

133. Various academics have suggested similar pragmatic readings of the

Confrontation Clause. See, e.g., Andrea Roth, Book Review, 62 J. LEGAL EDUC. 377, 386

(2012) (“Rather, the answer should be for courts to recognize that the right of confrontation

is not historically or logically limited to cross-examination and physical confrontation, but—

as David Sklansky has suggested—encompasses ‘the broader ability of an accused to test and

to challenge the state’s proof.’”); David Alan Sklansky, Hearsay’s Last Hurrah, 2009 SUP.

CT. REV. 1, 66–67 (“The language and history of the Confrontation Clause suggest something

else, as well: that the underlying value the Confrontation Clause sought to protect was not,

first and foremost, the specifics of cross-examination but the broader ability of an accused to

test and to challenge the state’s proof. That is a value that runs deep in the Anglo-American

legal tradition (and, as we have seen, in the Continental legal tradition). It is also a value that

is plainly worth caring about.”).


As Melendez-Diaz tells us, all “the Constitution guarantees” is

“confrontation”;134 it is silent as to form. Indeed, such a pragmatic reading seems

more faithful to the Framers themselves, many of whom were forward thinkers in

the fields of science and technology. After all, among those in attendance at the

Constitutional Convention were Benjamin Franklin, a prodigious inventor of items

from bifocals to the lightning rod,135 and James Madison, author of Federalist No.

43 (discussing the need for the Constitution’s Patent Clause), and about whom it

was said, “all new inventions interested him.” 136 Thus, the issue is not with

Originalism per se, but with the variant at work in Melendez-Diaz.

B. Where Does Forensic Testing Fit?

Having shown the impossibility of determining “what James Madison

thought about”137 the value of cross-examination for twenty-first century scientific

evidence, we can now turn to examine how forensic testing fits into the

Confrontation Clause. Accepting the framework of Crawford, we know that

confrontation applies to the “testimonial” statements of all “witnesses.”138 However,

expert testimony about forensic testing does not cleanly fit into either of these

categories, suggesting that the Melendez-Diaz view of the Confrontation Clause fails

to adapt sensibly to new technology.

1. Are Forensic Testing Reports “Testimonial”?

In some cases, reports of forensic testing certainly can be testimonial—that

is, similar to an affidavit—as discussed by the Court in Crawford.139 For example,

Annie Dookhan often received special requests from prosecutors to see if drug

samples, identified by the name of the defendant, weighed more than a certain

threshold weight, which was required for longer prison sentences.140 Any report

produced in response to such a request clearly contemplated that it would be used to

134. Melendez-Diaz, 557 U.S. at 318.

135. Benjamin Franklin . . . In His Own Words, LIBRARY OF CONG., http://ww

w.loc.gov/exhibits/treasures/franklin-scientist.html (last visited May 25, 2014).

136. SYDNEY HOWARD GAY, JAMES MADISON 72 (1886). See also id. (“A small

telescope, he [Madison] suggests, might be fitted on as a handle to a cane . . . Jefferson writes

him [Madison] of a new invention, a pedometer; and he wants one for his own pocket.”).

137. Illustrating this challenge, and for a funny exchange on “what James Madison

would have thought,” see Justice Alito’s comments to Justice Scalia at oral argument in

Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011): “Well, I think what

Justice Scalia wants to know is what James Madison thought about video games? [Laughter]

Did he enjoy them?” Brown, 131 S. Ct. at 2729, Audio Recording of Oral Argument at 16:04,

available at http://www.oyez.org/cases/2010-2019/2010/2010_08_1448.

138. Crawford v. Washington, 541 U.S. 36, 53–54 (2004) (“[T]he Framers would

not have allowed admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify and the defendant had had a prior opportunity for cross-

examination.”).

139. Id. at 51–52, 68.

140. See Allen & Estes, supra note 72 (summarizing emails from a prosecutor

stating that “he needed a marijuana sample to weigh at least 50 pounds so that he could charge

the owners with drug trafficking”).


prove guilt at trial, and thus could plausibly be deemed testimonial.141 However, as

Justice Breyer pointed out in his concurring opinion in Williams,142 many forensic

testing procedures will be carried out by analysts who do not know that its sole

purpose is to incriminate a defendant in a criminal prosecution. Many DNA tests,

for example, may involve samples from the victim rather than the perpetrator, or

may be entirely noncriminal in nature, e.g., identifying victims in an accident or

mass casualty scenario. Such tests are arguably not testimonial.

Moreover, the Court has accepted other types of hearsay that are

testimonial in nature, without finding any Confrontation Clause violation.143 Dying

declarations—seemingly accepted on the basis of what Judge Posner has called “no

firmer ground than judicial habit, in turn reflecting judicial incuriosity and

reluctance to reconsider ancient dogmas”144—as well as certain types of business

records could conceivably run afoul of confrontation under Crawford. Yet the Court

has carved out exceptions for both.145 A dying declaration naming one’s killer is

clearly testimonial but remains admissible based on the eighteenth century belief

that one would never commit perjury before meeting his maker; and certain business

records, when requested specifically for trial, are as damning as any DNA testing

report. In a bank fraud case, for example,146 the victim of the fraud is the party

producing the records specifically for use in a criminal prosecution—yet no

Confrontation Clause violation is found, because Crawford unqualifiedly upheld a

“business records” exception. (Justice Breyer also hints at this anomaly in

Williams.147) Yet, at the very least, the act of producing business records—especially

where the institution producing those records is the victim— undoubtedly seems

testimonial. While a defendant may cross-examine a document custodian in such

cases, he or she will not cross-examine the person—or machine—who created the

original record. Of course, if there were some serious allegation that the records

were incorrect, the defendant would be able to confront other witnesses from the

141. See Crawford, 541 U.S. at 51–52 (offering examples of “testimonial”

statements).

142. Williams v. Illinois, 132 S. Ct. 2221, 2250–51 (2012) (Breyer, J., concurring).

143. See Crawford, 541 U.S. at 56 (exempting business records); id. at 56 n.6 (“If

this [dying declarations] exception must be accepted on historical grounds, it is sui generis.”).

144. United States v. Boyce, 742 F.3d 792, 802 (7th Cir. 2014) (Posner, J.,

concurring) (“The Advisory Committee Notes go on to say that while the excited utterance

exception has been criticized, ‘it finds support in cases without number.’ I find that less than

reassuring. Like the exception for present sense impressions, the exception for excited

utterances rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity

and reluctance to reconsider ancient dogmas.”).

145. Supra note 143.

146. See, e.g., United States v. Munoz-Franco, 487 F.3d 25, 38 (1st Cir. 2007)

(upholding the use of business records against a Confrontation Clause challenge in a bank

fraud prosecution).

147. See Williams, 132 S. Ct. at 2252 (Breyer, J., concurring) (“Similarly, should

the defendant demonstrate the existence of a motive to falsify, then the alternative safeguard

of honesty would no longer exist and the Constitution would entitle the defendant to

Confrontation Clause protection. Cf. 2 Wigmore, Evidence § 1527, at 1892 (in respect to the

business records exception, ‘there must have been no motive to misrepresent’)”).


victim bank—an approach that Justice Breyer argued in his concurrence in Williams

should be applied to forensic testing as well.148

I am not arguing that the business records exception to the hearsay rule and

the Confrontation Clause should be abandoned; rather, I offer it as an example of

how the Court has often applied a pragmatic analysis to what the Confrontation

Clause allows. By creating a rigid rule that exalts procedure over substance, the

Court’s Melendez-Diaz decision is inviting lower courts to stretch the doctrine in

order to avoid absurd results. This problem is already present in Courts of Appeals

decisions on Confrontation Clause challenges to autopsy reports that were

performed years before prosecution by a now-unavailable medical examiner. (Such

issues arise with defendants who were not identified previously, or who fled from

justice, causing years to pass before trial.) As discussed in the following paragraphs,

although some courts have tried to distinguish autopsies because they are often

performed for deaths that will not result in prosecution, i.e., deaths from natural

causes or suicide, the more realistic reason that courts have avoided applying the

literal dictates of Melendez-Diaz and its progeny to autopsy reports is because of the

substantial injustice they would produce: a defendant kills his victim, evades justice

for years, and then the Confrontation Clause protects him from prosecution because

the analyst who performed the autopsy has since retired or passed away. Justice

Breyer warned of this very result in his concurring opinion in Williams: “Is the

Confrontation Clause effectively to function as a statute of limitations for

murder?”149

After Crawford, every federal court considering autopsy reports found

them nontestimonial, analogizing them to business records.150 However, following

Melendez-Diaz, the outcome is uncertain. As Judge Boudin wrote in a 2011 opinion:

Abstractly, an autopsy report can be distinguished from, or

assimilated to, the sworn documents in Melendez–Diaz and

Bullcoming, and it is uncertain how the Court would resolve the

question. We treated such reports as not covered by the Confrontation

Clause [in] United States v. De La Cruz [514 F.3d 121 (1st Cir.

2008)] . . . but the law has continued to evolve and . . . now it is

148. See id. at 2250–52 (Breyer, J., concurring).

149. Id. at 2251. For ease of reading, I have omitted the (numerous) internal

quotation marks from this quote. Justice Breyer is paraphrasing part of Justice Kennedy’s

dissent in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 335 (2009) (Kennedy, J.,

dissenting) (quoting Comment, Toward a Definition of “Testimonial”: How Autopsy Reports

Do Not Embody the Qualities of a Testimonial Statement, 96 CAL. L.REV. 1093, 1094, 1115

(2008)).

150. See, e.g., United States v. De La Cruz, 514 F.3d 121, 133 (1st Cir. 2008)

(finding no Confrontation Clause violation because an “autopsy report is made in the ordinary

course of business by a medical examiner who is required by law to memorialize what he or

she saw and did during an autopsy”); United States v. Feliz, 467 F.3d 227, 236 (2d Cir. 2006)

(holding that autopsy reports—even for a gruesome murder—are not testimonial and thus can

be admitted as business records because “the Office of the Chief Medical Examiner of New

York conducts thousands of routine autopsies every year, without regard to the likelihood of

their use at trial”).


uncertain whether, under its primary purpose test, the Supreme Court

would classify autopsy reports as testimonial.151

Recent cases, showing that there is no clear consensus among federal and

state courts, 152 have validated Judge Boudin’s prediction. In United States v.

Ignasiak, the Eleventh Circuit held that autopsy reports are testimonial hearsay

barred by the Confrontation Clause, 153 while the Second Circuit has ruled that

autopsy reports are nontestimonial, stressing two important factors in its holding:

first, the independence from law enforcement of the medical examiner’s office in

question; and second, the fact that there was “no suggestion that [the medical

examiner who performed the original autopsy] or anyone else involved in this

autopsy process suspected that [the victim] had been murdered and that the medical

examiner’s report would be used at a criminal trial.”154 Thus, it is unclear whether

even the Second Circuit would reach the same outcome in a case where the cause of

death was obviously homicide. Interestingly, the Second Circuit argued that its

holding was not at odds with the Eleventh Circuit, distinguishing Ignasiak because

the Florida Medical Examiner’s Office at issue in that case was not independent

from law enforcement.155 That sounds like a distinction without a difference—

statements need not be made by law enforcement officials to be “testimonial” under

Crawford—and an unsuccessful attempt to avoid the appearance of a circuit split.

This pattern of “distinguishing away” a previous holding is, however, a common

tactic for reining in the reach of a decision.156

151. Nardi v. Pepe, 662 F.3d 107, 111–12 (1st Cir. 2011).

152. While I focus on federal courts for simplicity, it is worth noting that state

courts nationwide have also split on this issue. A recent habeas ruling in the District of

Massachusetts collected cases on this question. See Hensley v. Roden, CIV.A. 10-12133-

RWZ, 2013 WL 22081 at *5 n.3 (D. Mass. Jan. 2, 2013).

153. United States v. Ignasiak, 667 F.3d 1217, 1231 (11th Cir. 2012) (“Applying

the reasoning of Crawford, Melendez–Diaz, and Bullcoming, we conclude that the five

autopsy reports admitted into evidence in conjunction with Dr. Minyard’s testimony, where

she did not personally observe or participate in those autopsies (and where no evidence was

presented to show that the coroners who performed the autopsies were unavailable and the

accused had a prior opportunity to cross-examine them), violated the Confrontation Clause.”).

154. United States v. James, 712 F.3d 79, 99 (2d Cir. 2013).

155. Id. at 99 n.11.

156. See, e.g., Howes v. Fields, 132 S. Ct. 1181, 1187 (2012) (explaining that

Miranda warnings not required for an interrogation held in a jail when the prisoner was told

he could return to his cell anytime); Berkemer v. McCarty, 468 U.S. 420, 439 (1984)

(explaining that Miranda warnings are not required at a traffic stop, even though defendant

made incriminating statements); New York v. Quarles, 467 U.S. 649, 651 (1984) (creating a

“public safety exception” to Miranda); Oregon v. Mathiason, 429 U.S. 492, 499 (1977)

(holding that Miranda warnings were not necessary for an interrogation at a police station

because the defendant was told that he could leave). Some commentators argue that this

“distinguishing away” eviscerates the rule. See, e.g., William T. Pizzi & Morris B. Hoffman,

Taking Miranda’s Pulse, 58 VAND. L. REV. 813, 814 (2005).


2. Who is the “Witness” Subject to Cross-Examination for a Forensic Testing

Report?

Based on the Court’s current doctrine, the answer to this question also is

unclear. Here too, the business records exception example is relevant because of

what it shows about the nature of the “witness” who is subject to confrontation. Part

of the Court’s comfort with the business records exception arguably comes from the

fact that the “testimonial” part of a business record is often not offered by a human

being at all, but by computers recording billions of transactions—such as bank

records, phone records, and GPS data, just to name a few. Similarly, in forensic

testing, while the analyst is of course a “witness” if they testify in court—and thus

subject to cross-examination—in two very important ways, forensic analysts really

are not “witnesses” within the historic meaning of the Confrontation Clause.

First, forensic testing is unlike the testimony of an eyewitness, which is the

historic core of the Confrontation Clause. For eyewitness testimony—like the

example of Sir Walter Raleigh’s treason trial 157 —confrontation affords the

defendant the ability to discredit the testimony against him by impeaching the

witness’s perception, memory, or honesty, for example. This version of

confrontation accords with the definition of “witness” given in Crawford: one who

“bears testimony” against the defendant.158 Such eyewitness testimony was the only

kind of evidence that the Framers would have known. However, for forensic testing,

the analogy to one who “bears witness” is not clear, as Justice Kennedy pointed out

in his dissent in Melendez-Diaz: “Laboratory analysts are not ‘witnesses against’ the

defendant as those words would have been understood at the framing.”159

Of course, the defendant can cross-examine the analyst who testifies, but

the damning evidence that a laboratory analyst provides is not solely the product of

her perception, but largely the output of a machine. In an opinion predating

Melendez-Diaz, Judge Easterbrook made a similar point, concluding, “a machine [is

not] a ‘witness against’ anyone,” because “how could one cross-examine a gas

chromatograph?”160 In other contexts, the Supreme Court has also recognized that

challenges to critical evidence need not come exclusively through cross-

examination. In Florida v. Harris, a 2013 decision on the propriety of the use of dog

sniffs for narcotics detection, the Court concluded: “A defendant, however, must

have an opportunity to challenge such evidence of a dog’s reliability, whether by

cross-examining the testifying officer or by introducing his own fact or expert

157. See, e.g., Crawford v. Washington, 541 U.S. 36, 44 (2004); Raleigh’s Case, 2

How. St. Tr. 1, 15–16 (1603).

158. Crawford, 541 U.S. at 51.

159. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 343 (2009) (Kennedy, J.,

dissenting).

160. United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (“Nor is a machine

a ‘witness against’ anyone. If the readings are ‘statements’ by a ‘witness against’ the

defendants, then the machine must be the declarant. Yet how could one cross-examine a gas

chromatograph? Producing spectrographs, ovens, and centrifuges in court would serve no

one’s interests.”).


witnesses.”161 The Court should apply the same flexible approach to confrontation

of laboratory analysts.

Second, even assuming that the analyst is a witness subject to

confrontation, there remain numerous other people who make such testing possible,

without whom there would be no evidence to test and thus no testimony to confront.

If the Confrontation Clause requires cross-examination of the analyst who recounts

a machine-readout then, logically, it should also require in-court testimony from

every analyst in the laboratory who handled that sample, every technician who

calibrated the equipment, and every law enforcement officer who collected and

transported the evidence. Justice Breyer makes a similar point in Williams:

Once one abandons the traditional rule, there would seem often to be

no logical stopping place between requiring the prosecution to call as

a witness one of the laboratory experts who worked on the matter and

requiring the prosecution to call all of the laboratory experts who did

so. Experts—especially laboratory experts—regularly rely on the

technical statements and results of other experts to form their own

opinions. The reality of the matter is that the introduction of a

laboratory report involves layer upon layer of technical statements

(express or implied) made by one expert and relied upon by

another.162

This argument is not mere semantics. If the Confrontation Clause is

designed to allow for cross-examination of all witnesses bearing testimonial

statements, then it needs to adjust to today’s world of computer-produced statements

that rely on the participation of potentially dozens of individuals.163 If a forensic test

report is, in fact, “testimonial” for the purposes of Sixth Amendment analysis, then

there is not just one “witness” who bears that testimony.

Like Justice Breyer, I do not believe that the best solution to this

Confrontation Clause dilemma is to require the testimony of a dozen individuals to

establish the validity of a single lab test. However, this logic highlights the flawed

principle on which the Melendez-Diaz conception of confrontation rests, and shows

the need for a pragmatic rule that stays true to the historical purpose of the

Confrontation Clause.

C. Interpreting the Sixth Amendment: Lessons from Gideon

The previous Subpart highlights the impossibility of wedging forensic

testing into the definitions of “testimonial” and “witness” from Crawford and

Melendez-Diaz. Instead, a more pragmatic interpretation that focuses on the core

values of the Confrontation Clause is necessary. Fortunately, the idea that the Sixth

Amendment should be interpreted pragmatically to give meaning to the underlying

right is not novel. The Court used this exact reasoning in its landmark decision in

Gideon v. Wainwright, concluding that the Sixth Amendment’s guarantee that “the

accused shall enjoy the right to have . . . the Assistance of Counsel for his

161. Florida v. Harris, 133 S. Ct. 1050, 1057 (2013) (emphasis added).


163. Id. at 2252, Appendix (Breyer, J., concurring). Justice Breyer notes that as

many as 12 analysts may be required for a typical DNA test. Id.


defence”164 “would be, in many cases, of little avail if it did not comprehend the

right to” appointed counsel for indigent defendants. 165 The Court bluntly

acknowledged that innocent defendants could be convicted merely because they

could not afford an attorney: “Without [assistance of counsel], though he be not

guilty, he faces the danger of conviction because he does not know how to establish

his innocence.”166 And clearly, according to Justice Black’s opinion, the fact that the

“government hires lawyers to prosecute and defendants who have the money hire

lawyers to defend are the strongest indications of the wide-spread belief that lawyers

in criminal courts are necessities, not luxuries.”167

Although the text of the Sixth Amendment does not call for access to

attorneys for indigent defendants, the Court concluded that the right would be

hollow otherwise. Substance trumped form for the Sixth Amendment’s right to

counsel in Gideon, and should be applied the same way for forensic testing.

Therefore, a constitutional right of access to retesting of forensic evidence—free of

charge for indigent defendants—is the Confrontation Clause equivalent of Gideon.

While not limitless, as discussed below in Part IV.D, this right of access to retesting

better fits the purpose of the Confrontation Clause because it addresses the

underlying evils with which the Framers were concerned, and the problems—like

Annie Dookhan—that we need to deal with today.

D. A New Rule

The Annie Dookhan scandal, like others cited by Justice Breyer’s

concurring opinion in Williams, 168 reveals that cross-examination of laboratory

analysts is ineffective at exposing flawed forensic testing.169 Thus, Melendez-Diaz

confers a hollow confrontation right on defendants, while imposing substantial costs

on prosecutors. Early academic studies on the effects of Melendez-Diaz have already

documented the costs of that decision, namely, huge increases in defense subpoenas

164. U.S. CONST. amend. VI.

165. Gideon v. Wainwright, 372 U.S. 335, 345 (1963) (quoting Powell v. Alabama,

287 U.S. 45, 68–69 (1932).

166. Id. (quoting Powell, 287 U.S. at 69).

167. Id. at 344.

168. See Williams, 132 S. Ct. at 2250 (2012) (Breyer, J., concurring) (citing

Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful

Convictions, 95 VA. L. REV. 1, 2 (2009) (finding erroneous testimony by forensic analysts in

60% of the Innocence Project’s wrongful conviction cases, concluding: “Unfortunately, the

adversarial process largely failed to police this invalid testimony. Defense counsel rarely

cross-examined analysts concerning invalid testimony, and rarely obtained expert witnesses

of their own. In the few cases in which invalid forensic science was challenged, judges seldom

provided relief”)).

169. This is not to say that cross-examination has no value for challenging the

collection of forensic evidence, for example, as used by the defense in the murder trial of O.J.

Simpson. See generally George Fisher, The O.J. Simpson Corpus, 49 STAN. L. REV. 971

(1997) (book review). Ironically, however, the Confrontation Clause—at least as far as

Williams appears to indicate—would not guarantee cross-examination of every person who

handled physical evidence in a defendant’s case.


of laboratory technicians, and massive backlogs in the testing of forensic evidence

(because technicians are in court testifying more frequently).170

However, there is no reason for the Court to limit the Confrontation

Clause’s reach to cross-examination when what the defendant ultimately wants to

“confront” is not the analyst, but the underlying evidence itself. Given jurors’

expectations about, and deference to, scientific testimony,171 the only meaningful

way to confront forensic testing is with more forensic testing. This pragmatic view

of the Confrontation Clause was enshrined in numerous decisions before Crawford,

as Chief Justice Rehnquist pointed out: “Indeed, cross-examination is a tool used to

flesh out the truth, not an empty procedure.”172 His opinion cited numerous cases

proclaiming that confrontation is “essentially a functional right.”173

In a future case on confrontation of forensic test results, the Court should

hold that the Sixth Amendment guarantees a right to retesting of evidence, within

the limits discussed below. Under such a holding, legislators could implement

procedures like the “Retesting Policy” proposed above in Section III.B. And, while

Fifth Amendment concerns might prevent the jury from hearing that the defendant

requested the retest,174 a similar statement, such as “to ensure accuracy, the judge

ordered a second test of the evidence in this case,” should deter frivolous retesting.

This would save the state money, while not infringing on the defendant’s privilege

against self-incrimination.175 A guilty defendant would not want jurors to hear that

a second test, ordered by a neutral judge, confirmed the validity of the government’s

results. This holding would give defendants access to a critical confrontation right,

which depending on the jurisdiction, is currently only available by judicial leave.176

170. E.g., Nicholas Klaiber, Confronting Reality: Surrogate Forensic Science

Witnesses Under the Confrontation Clause, 97 VA. L. REV. 199, 233 n.195 (2011).

171. See supra note 85 and accompanying text.

172. Crawford v. Washington, 541 U.S. 36, 74 (2004) (Rehnquist, C.J., concurring

in judgment).

173. Id. (Rehnquist, C.J., concurring in judgment) (quoting Kentucky v. Stincer,

482 U.S. 730, 737 (1987) (“The right to cross-examination, protected by the Confrontation

Clause, thus is essentially a ‘functional’ right designed to promote reliability in the truth-

finding functions of a criminal trial.”); Maryland v. Craig, 497 U.S. 836, 845 (1990) (“The

central concern of the Confrontation Clause is to ensure the reliability of the evidence against

a criminal defendant by subjecting it to rigorous testing in the context of an adversary

proceeding before the trier of fact.”).

174. The fact that the defendant “asked” for the retest would likely be deemed

“testimonial” and therefore privileged under the Fifth Amendment. See Schmerber v.

California, 384 U.S. 757, 761 (1966) (“We hold that the [Fifth Amendment] privilege protects

an accused only from being compelled to testify against himself, or otherwise provide the

State with evidence of a testimonial or communicative nature.”) (emphasis added). Under my

earlier proposed legislative reforms, however, this concern would not be present, as the

defendant could be required to waive this objection when requesting the retest.

175. Even the majority in Melendez-Diaz claimed to be open to such pragmatic

compromises, such as requiring defendants to assert Confrontation Clause claims about

analysts’ testimony before trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 326–27

(2009). Virginia has already adopted a notice requirement. See Ben Conery, States Scramble

to Keep Techs in Labs, Out of Courts, WASH. TIMES, Aug. 31, 2009, at A1.

176. See, e.g., 18 U.S.C. § 3006A(e)(1); MASS. R. CRIM. P. 14(a)(2), 41.


This retesting proposal also most appropriately aligns incentives for

defendants. Possible testing outcomes fall into one of four categories: true positive,

false positive, true negative, or false negative. 177 We can disregard the two

“negative” results, because in either case, a negative test result will preclude

prosecution. A “true positive” test implies that the procedure was scientifically

correct, but could have produced an incorrect result if the evidence was tampered

with (either negligently or intentionally). Thus, a retest would not alter the outcome.

A “false positive” test implies that the scientific procedure itself was performed

incorrectly, thus allowing for a corrective retest. In both cases, a guilty defendant

has no incentive to request a new procedure under the “Retesting Policy” outlined

in Part III.B; in contrast, a guilty defendant does have an incentive to abuse the

system under the Melendez-Diaz rule by demanding cross-examination of the

analyst, and hoping he or she will not show up at trial, a result that Justice Kennedy

warned of in Melendez-Diaz:

The analyst will not always make it to the courthouse in time. He or

she may be ill; may be out of the country; may be unable to travel

because of inclement weather; or may at that very moment be waiting

outside some other courtroom for another defendant to exercise the

right the Court invents today. . . . The result, in many cases, will be

that the prosecution cannot meet its burden of proof, and the guilty

defendant goes free on a technicality that, because it results in an

acquittal, cannot be reviewed on appeal. The Court's holding is a

windfall to defendants.178

Innocent defendants, however, would have an incentive to request retesting

of evidence. For “false positive” tests, a retest would exonerate the defendant; “true

positive” results based on corrupted evidence, however, still pose a problem.

Although retesting alone might not vindicate their innocence in such cases, these

incentives are far closer to the optimal outcome than the result of Melendez-Diaz,

and could be effectively addressed by the legislative reforms discussed in Part III.

Allowing access to retesting, however, is only the first step. Coupled with

access to retesting must be a holding that cross-examination of the analyst is not

automatically part of the Confrontation Clause right. However, cross-examination

would be available if the defense “provide[s] good reason to doubt the laboratory’s

competence” or “demonstrate[s] the existence of a motive to falsify” by the analyst,

as suggested by Justice Breyer’s concurrence in Williams.179

177. Unreliable Research: Trouble at the Lab, ECONOMIST, Oct. 19, 2013,

http://www.economist.com/news/briefing/21588057-scientists-think-science-self-correcting

-alarming-degree-it-not-trouble.

178. Melendez-Diaz, 557 U.S. at 342–43 (Kennedy, J., dissenting).

179. See Williams v. Illinois, 132 S. Ct. 2221, 2252 (2012) (Breyer, J., concurring)

(“Moreover, should the defendant provide good reason to doubt the laboratory’s competence

or the validity of its accreditation, then the alternative safeguard of reliability would no longer

exist and the Constitution would entitle defendant to Confrontation Clause protection.

Similarly, should the defendant demonstrate the existence of a motive to falsify, then the

alternative safeguard of honesty would no longer exist and the Constitution would entitle the

defendant to Confrontation Clause protection. Cf. 2 Wigmore, Evidence § 1527, at 1892 (in

respect to the business records exception, ‘there must have been no motive to misrepresent’).


Some readers might wonder whether this exception threatens to swallow

my entire proposed rule. Perhaps they might conclude that every defendant would

opt for a “police frame-up” theory of the case. Even presuming that—after first

exhausting the option for retesting—the defendant was able to make a minimum

showing to raise this defense, research shows that such a strategy could easily

backfire. Although it may have worked in the O.J. Simpson trial, where there was

spectacular misconduct by the openly racist Los Angeles Police Department

Detective Mark Fuhrman,180 a large amount of academic literature argues that juries

routinely reject such “blame shifting” defenses, unless supported by serious

evidence.181 In essence, my proposed solution would require a “clear statement rule”

for the defense: if retesting is not adequate, the defense can still cross-examine

analysts, but only by fully committing to the necessity of such cross-examination as

part of its case; innocent defendants will pursue such an option, while guilty

defendants will be deterred from gamesmanship because of potential jury rejection

of unsupported “blame-shifting.”

CONCLUSION

To support the majority opinion in Melendez-Diaz, Justice Scalia also

offered a pragmatic justification for why “the sky will not fall.” After all, his opinion

argued, nine states and the District of Columbia had already mandated confrontation

of forensic analysts before the Supreme Court’s decision in Melendez-Diaz, and yet

“the criminal justice system has [not] ground to a halt.” 182 Support for a new

retesting policy, however, can similarly be found by looking at other common law

countries with a historic right of confrontation. As the problem of flawed forensic

testing has been revealed in countries like Australia, policymakers and legislators

there have supported reforms to provide access to retesting for criminal

defendants,183 proving that “the sky [really] will not fall” with such a solution.

Indeed, when actual innocence is on the line, the Court should not allow

form to trump substance. The risk of error in forensic testing is real, but the value of

cross-examination in confronting such error is vastly overstated by the Supreme

Thus, the defendant would remain free to show the absence or inadequacy of the alternative

reliability/honesty safeguards, thereby rebutting the presumption and making the

Confrontation Clause applicable.”).

180. See Fisher, supra note 169, at 993.

181. See Stephen J. Schulhofer, The Trouble with Trials; the Trouble with Us, 105

YALE L.J. 825, 853 (1995) (discussing costs of “blame shifting” away from the defendant and

onto victim or police as a defense strategy) (“[T]he symbiotic relationship between the blame

game and the abuse excuse proves self-defeating and dysfunctional”); Richard J. Bonnie,

Excusing and Punishing in Criminal Adjudication: A Reality Check, 5 CORNELL J.L. & PUB.

POL’Y 1 (1995) (“[T]here is little, if any, evidence that the public at large is becoming more

receptive to blame-shifting defenses. If anything, I detect a hardening public attitude, not a

more forgiving one.”). But cf. Abbe Smith, Defending Defending: The Case for Unmitigated

Zeal on Behalf of People Who Do Terrible Things, 28 HOFSTRA L. REV. 925, 934 (2000)

(evaluating “theories of defense that exploit racism, sexism, homophobia, or ethnic bias”).

182. Melendez-Diaz, 557 U.S. at 326 n.11 (2009).

183. See Edmond, supra note 81; David Hamer, 21st Century Challenges in

Evidence Law, 33 SYDNEY L. REV. 325, 325 (2011), available at http://sydney.edu

.au/law/slr/slr_33/slr33_3/SLRv33no3Hamer.pdf; Edmond & San Roque, supra note 81.


Court’s Melendez-Diaz line of cases, as laid bare by the Annie Dookhan scandal.

Although legislators can institute some reforms, the solution ultimately rests with

the Supreme Court. Instead of conferring a hollow confrontation right, the Court

should hold that the Sixth Amendment protects a right to retesting of evidence, while

allowing cross-examination of forensic analysts only on a showing that it will be

important to the defense, not merely a technicality on which to avoid conviction.

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